THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. BRUCE THOMAS, Appellant.

Opinion filed September 20, 2001.

JUSTICE FREEMAN delivered the opinion of the court:

Defendant, Bruce Thomas, was charged in the circuit court of
Jefferson County with one count of possession of a controlled
substance with the intent to deliver. 720 ILCS 570/401(c)(2) (West
1998). Defendant moved to suppress evidence of purported
cocaine that police seized from him during a "pat-down" search.
The circuit court granted the motion. The State appealed to the
appellate court, which reversed the suppression order. 315 Ill.
App. 3d 849. We allowed defendant's petition for leave to appeal
(177 Ill. 2d R. 315(a)), and now affirm the appellate court.

BACKGROUND

The following evidence was adduced at the suppression
hearing. At approximately 11:30 p.m. on June 20, 1998, defendant
was riding his bicycle on Tenth Street near Bell or Herbert Avenue
in Mt. Vernon. He rode past Mt. Vernon police officer Farrin
Melton, who was completing the issuance of a traffic ticket.
Officer Melton noticed that defendant was holding a police
scanner that permits a listener to monitor police radio
transmissions.

Officer Melton had previously arrested defendant for drug
offenses. Officer Melton had recently learned of defendant's
release from prison. Also, Melton had heard of a confidential
informant's tip that defendant was using his bicycle to deliver
illegal drugs, most often in the evening.

Based on this knowledge and defendant's possession of a
police scanner, Officer Melton drove after defendant to speak with
him "about his activities." Upon finding defendant, Officer Melton
radioed Officer Steven Burtnett and announced his intention to
stop defendant and conduct a "field interview." Defendant heard
the communication on the police scanner. Officer Melton overtook
and passed defendant; he did not activate his emergency lights or
instruct defendant to stop. Officer Melton positioned his squad car
across defendant's path. Defendant abruptly turned into an
alleyway and departed the area at an accelerated pace. Since
Officer Melton was still behind the wheel of his car, he had no
opportunity to verbally compel a stop.

At that point, Officer Burtnett was following Officer Melton
and saw defendant's evasion. He was first to pursue defendant
down the alley. Officer Burtnett overtook defendant, pulled his
squad car alongside, lowered a window and directed defendant to
stop. Defendant asked Officer Burtnett what he wanted. Before
Officer Burtnett could answer, defendant changed direction and
accelerated.

Officer Burtnett activated his emergency lights and, joined by
Officer Melton, gave chase. Defendant eventually abandoned his
bicycle and fled into a field. Officer Melton exited his squad car
and pursued defendant on foot. The officer announced his office
and ordered defendant to stop. Defendant became tangled in high
grass, enabling Officer Melton to capture and arrest him for
obstructing a police officer. Officer Melton conducted a "pat-down" search to determine if defendant was carrying a weapon. He
recovered from defendant's pants pocket what appeared to be three
rocks of crack cocaine. Officer Melton conceded that it was not
illegal for defendant to possess a police scanner and admitted that
he had no information that defendant was carrying illegal drugs on
the night in question.

Defendant was initially charged with obstructing a police
officer and possession of a controlled substance with intent to
deliver. He was eventually indicted on one count of possession of
a controlled substance with intent to deliver. See 720 ILCS
570/401(c)(2) (West 1998). Defendant moved to suppress the
purported cocaine that Officer Melton recovered from defendant's
pants pocket and bar its use as evidence. Defendant argued that he
was not violating any laws when he was detained.

At the conclusion of the hearing, the circuit court granted
defendant's motion to suppress. The appellate court reversed the
circuit's court suppression order. The court held that defendant's
flight corrected Officer Melton's ungrounded suspicion, upon
which he based his initial, unwarranted attempt to stop defendant.
315 Ill. App. 3d at 858. Defendant appeals.

DISCUSSION

Generally, a trial court's decision on a motion to suppress
evidence is subject to reversal only if it is clearly or manifestly
erroneous. People v. Foskey, 136 Ill. 2d 66, 76 (1990). This test is
based on the understanding that suppression motions usually raise
mixed questions of law and fact: a court first weighs the evidence
and determines the facts surrounding the complained-of conduct,
after which it decides whether, as a matter of law, these facts
constitute an unconstitutional seizure. People v. Shapiro, 177 Ill.
2d 519, 524 (1997). However, where, as here, neither the facts nor
the credibility of the witnesses is contested, the determination of
whether there is reasonable suspicion warranting an investigatory
stop is a legal question which a reviewing court may consider de
novo. See Foskey, 136 Ill. 2d at 76.

The fourth amendment to the United States Constitution
guarantees the "right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and
seizures." U.S. Const., amend. IV. This provision applies to all
seizures of the person, including seizures that involve only a brief
detention short of traditional arrest. United States v. Brignoni-Ponce, 422 U.S. 873, 878, 45 L. Ed. 2d 607, 614, 95 S. Ct. 2574,
2578 (1975); People v. Smithers, 83 Ill. 2d 430, 433-34 (1980).
Reasonableness under the fourth amendment generally requires a
warrant supported by probable cause. People v. Flowers, 179 Ill.
2d 257, 262 (1997); People v. Long, 99 Ill. 2d 219, 227 (1983).

However, in Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88
S. Ct. 1868 (1968), the United States Supreme Court recognized
a limited exception to the traditional probable cause requirement.
In Terry, the Court held that a police officer, under appropriate
circumstances, could briefly detain a person for investigatory
purposes. Under the Terry exception, a police officer may briefly
stop a person for temporary questioning if the officer reasonably
believes that the person has committed, or is about to commit, a
crime. Terry, 392 U.S. at 22, 20 L. Ed. 2d at 906-07, 88 S. Ct. at
1880; Flowers, 179 Ill. 2d at 262; Smithers, 83 Ill. 2d at 434.

Whether an investigatory stop is valid is a separate question
from whether a search for weapons is valid. Flowers, 179 Ill. 2d
at 263. The conduct constituting the stop under Terry must have
been justified at its inception. A court objectively considers
whether, based on the facts available to the police officer, the
police action was appropriate. To justify the intrusion, the police
officer must be able to point to specific and articulable facts
which, taken together with rational inferences therefrom,
reasonably warrant that intrusion. Terry, 392 U.S. at 20-21, 20 L.
Ed. 2d at 905-06, 88 S. Ct. at 1879-80; Long, 99 Ill. 2d at 227-28.

The Terry standards have been codified in our Code of
Criminal Procedure of 1963. Flowers, 179 Ill. 2d at 262; Long, 99
Ill. 2d at 228. Section 107-14 of the Code provides, in pertinent
part: "A peace officer *** may stop any person in a public place
for a reasonable period of time when the officer reasonably infers
from the circumstances that the person is committing, is about to
commit or has committed an offense ***." 725 ILCS 5/107-14
(West 1998). The same standard is applied in determining the
propriety of an investigatory stop under article I, section 6, of the
1970 Illinois Constitution (Ill. Const. 1970, art. I, §6). See People
v. Tisler, 103 Ill. 2d 226, 241-45 (1984) (the protection against
unreasonable searches and seizures under the Illinois Constitution
is measured by the same standards as are used in defining the
protections contained in the fourth amendment to the United States
Constitution).

In interpreting the above principles, this court has further
defined the reasonableness standard for police conduct in the
context of a Terry stop. Viewed as a whole, the situation
confronting the police officer must be so far from the ordinary that
any competent officer would be expected to act quickly. The facts
supporting the officer's suspicions need not meet probable cause
requirements, but they must justify more than a mere hunch. The
facts should not be viewed with analytical hindsight, but instead
should be considered from the perspective of a reasonable officer
at the time that the situation confronted him or her. Long, 99 Ill. 2d
at 228-29 (and cases cited therein).

Defendant's sole contention is that Officer Melton effected
the investigatory stop without having the requisite degree of
suspicion to support it. We agree with the appellate court that
Officer Melton's initial conduct constituted an unwarranted
investigatory stop and was constitutionally impermissible. Before
the appellate court, the State argued that Officer Melton decided
to effect an investigatory stop only after defendant fled. The
appellate court properly rejected that argument. The court
concluded that, prior to defendant's flight, Officer Melton "was
trying to effect a forceful stop and detention. His use of the phrase
'field interview' to describe his intent and design does not alter
what he did in order to effect it. Nor does it change the
investigative nature of that intent and design." 315 Ill. App. 3d at
853. We agree with the appellate court that Officer Melton wanted
to stop, detain, and interrogate defendant based on a suspicion
grounded in circumstances that fell short of warranting a stop.
Further, Officer Melton's actions constituted a show of authority.
315 Ill. App. 3d at 854.

However, we "must determine at what point in time the
defendant here was 'seized' within the meaning of the fourth
amendment and, more specifically, Terry v. Ohio." Long, 99 Ill. 2d
at 229. For if there was no seizure, then the fourth amendment was
not implicated at that point. See Florida v. Royer, 460 U.S. 491,
497-98, 75 L. Ed. 2d 229, 236, 103 S. Ct. 1319, 1324 (1983)
(opinion of White, J., joined by Marshall, Powell and Stevens,
JJ.); United States v. Mendenhall, 446 U.S. 544, 552-53, 64 L. Ed.
2d 497, 508, 100 S. Ct. 1870, 1876 (1980) (opinion of Stewart, J.,
joined by Rehnquist, J.); People v. Clark, 185 Ill. App. 3d 231,
236 (1989).

The purpose of the fourth amendment is not to eliminate all
contact between the police and citizens. As long as the person
being questioned remains free to disregard the questions and walk
away, there is no intrusion upon that person's liberty or privacy
that would require some particularized and objective justification.
Mendenhall, 446 U.S. at 553-54, 64 L. Ed. 2d at 509, 100 S. Ct. at
1877. A person has been seized within the meaning of the fourth
amendment only when, in view of all the circumstances
surrounding the incident, a reasonable person would have believed
that he or she was not free to leave. Michigan v. Chesternut, 486
U.S. 567, 573-74, 100 L. Ed. 2d 565, 572, 108 S. Ct. 1975, 1979
(1988); Royer, 460 U.S. at 501-02, 75 L. Ed. 2d at 239, 103 S. Ct.
at 1326; Mendenhall, 446 U.S. at 554, 64 L. Ed. 2d at 509, 100 S.
Ct. at 1877. This test states a necessary, but not a sufficient,
condition for seizure. California v. Hodari D., 499 U.S. 621, 628,
113 L. Ed. 2d 690, 698, 111 S. Ct. 1547, 1551 (1991).

This oft-stated test, sometimes referred to as the Mendenhall
test, was examined in Hodari D. There, the Court described the
issue as follows: "The narrow question before us is whether, with
respect to a show of authority as with respect to application of
physical force, a seizure occurs even though the subject does not
yield. We hold that it does not." Hodari D., 499 U.S. at 626, 113
L. Ed. 2d at 697, 111 S. Ct. at 1550. The Court reasoned as
follows:

"The word 'seizure' readily bears the meaning of a laying
on of hands or application of physical force to restrain
movement, even when it is ultimately unsuccessful. ***
It does not remotely apply, however, to the prospect of a
policeman yelling 'Stop, in the name of the law!' at a
fleeing form that continues to flee. That is no seizure. ***
An arrest requires either physical force *** or, where that
is absent, submission to the assertion of authority."
(Emphases in original.) Hodari D., 499 U.S. at 626, 113
L. Ed. 2d at 697, 111 S. Ct. at 1550-51.

The Court concluded that the fleeing Hodari was not seized until
a police officer tackled him. Hodari D., 499 U.S. at 629, 113 L.
Ed. 2d at 699, 111 S. Ct. at 1552.

In the present case, after discussing Hodari D., the appellate
court reasoned:

"A necessary show of authority under the Mendenhall test
does not end the inquiry into whether a fourth amendment
seizure has occurred. The police may well convey a
reasonable feeling of restraint, but that message does not
amount to a seizure within the meaning of the fourth
amendment until there is submission to it. A person must
submit to a show of authority before that show of
authority can constitute a seizure. Here, the defendant
was not seized by Officer Melton's attempted roadblock
because he refused to halt and, instead, chose to run. He
was seized only when physical force was applied after he
was caught.

Had the defendant stopped when his path was
obstructed, had he submitted to Officer Melton's show of
authority, a seizure of the kind offensive to our
constitution would have occurred. Officer Melton would
have effected an investigatory stop absent the requisite
degree of suspicion to support it. The stop would have
constituted an unreasonable seizure of the defendant's
person. However, Officer Melton's attempt to effect an
unlawful stop did not implicate the fourth amendment
because the defendant took flight and prevented it."
(Emphasis in original.) 315 Ill. App. 3d at 857.

The appellate court concluded that defendant's flight, induced
by Officer Melton's effort to effect an unwarranted investigatory
stop, turned Officer Melton's otherwise ungrounded suspicion into
a suspicion that justified defendant's ultimate stop and detention.
The court further concluded that defendant's flight to prevent the
impending illegal stop and detention cured the constitutionally
impermissible conduct that provoked the flight. 315 Ill. App. 3d
at 857. As the Court in Hodari D. observed: "Street pursuits
always place the public at some risk, and compliance with police
orders to stop should therefore be encouraged. *** Unlawful
orders will not be deterred, moreover, by sanctioning through the
exclusionary rule those of them that are not obeyed." (Emphasis
in original.) Hodari D., 499 U.S. at 627, 113 L. Ed. 2d at 698, 111
S. Ct. at 1551.

We agree with the appellate court's view of the case with
respect to the investigatory stop:

"We choose to examine Officer Melton's basis for a
seizure of the defendant's person at that point in time
when he was successful in effecting it. By that time,
Officer Melton's ungrounded suspicion had ripened into
suspicion that fully warranted an investigatory stop. The
defendant's history, his possession of a police scanner,
and the informant's tip was information that grew more
credible with each evasive turn that the defendant took in
his effort to outrun two squad cars. The defendant's desire
to avoid an encounter with the police was so great that he
was willing to place the public's safety, as well as his own
safety, at risk. He was even willing to abandon his bicycle
and police scanner in the hope of escaping. The
defendant's response to Officer Melton's unsuccessful
effort escalated into headlong flight, a consummate act of
evasion. It credited other information that Officer Melton
possessed and gave rise to an articulable suspicion that
criminal activity was afoot. Therefore, the defendant's
ultimate stop and detention was legal and proper. ***

***

There are two circumstances key to today's decision.
First, Officer Melton did not act without reason or for the
sole purpose of provoking the defendant's flight. He acted
on information that he believed warranted further
investigation. *** Second, the defendant's response to his
endeavor was nothing short of headlong flight. The
defendant's reaction was in no way ambiguous. There was
nothing to suggest that the defendant was merely
exercising the right to continue on his way or to cause
confusion between the exercise of that right and a pure act
of evasion." 315 Ill. App. 3d at 858-59.

We agree with the appellate court that this holding is not a
license to conduct investigatory stops in every case where a citizen
ignores, or fails to heed, a baseless police order or show of
authority. "[P]eople do have a right to go about their business, and
if they choose to do so, their choice does not authorize a
subsequent stop and detention." 315 Ill. App. 3d at 858, citing
Royer, 460 U.S. at 497-98, 75 L. Ed. 2d at 236, 103 S. Ct. at 1324.

We lastly note defendant's argument that the United States
Supreme Court "weakened" the constitutional right of privacy in
Wardlow, and that this court should interpret the Illinois
Constitution as affording greater protection. We decline
defendant's invitation. See People v. Mitchell, 165 Ill. 2d 211,
217-21 (1995).

CONCLUSION

For the foregoing reasons, the judgment of the appellate court,
which reversed the suppression order of the circuit court of
Jefferson County and remanded for further proceedings, is
affirmed.